MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
On the merits this appeal presents substantial questions concerning the constitutional validity of ordinances of the City of Los Angeles governing the solicitation of contributions for charity. First and Fourteenth Amendment grounds are urged as nullifying them chiefly in the view that they impose prior restraints upon and unduly abridge appellants' rights in the free exercise of their religion. Those rights, as claimed, are to engage in soliciting donations for charity as a part of their religion free from the ordinances' restrictions.
The California Supreme Court heard and determined the Gospel Army case several months in advance of this one. It sustained the regulations in both instances, filing separate opinions in each case. 27 Cal.2d 232; 28 Cal.2d 460. But the attack upon the city ordinances in the Gospel Army case covered a much wider range than here, and the court's principal opinion was rendered in that cause. Hence in this case it disposed of overlapping issues merely by reference a fortiori to its "approval" of the challenged provisions in the Gospel Army opinion.
As will more fully appear, this mode of treatment, together with interlacing relationships between provisions involved here and others in the Gospel Army case, has combined with the necessitated dismissal of that appeal to create for us difficult problems in determining exactly how much of the regulatory scheme approved in the Gospel Army opinion, and hence also how much of that decision, must be taken as having been incorporated in the disposition of this cause. By virtue of the California court's method of decision, we are largely without benefit of its judgment upon these matters, including possible questions of severability. Consequently, this fact, together with the different jurisdictional postures in which the cases reach this Court, would force us to determine those questions independently before undertaking any decision on the merits.
That necessity and the difficulties tendered by the extricating problem raise substantial questions concerning
This suit is one for a writ of prohibition. The appeal is from the California Supreme Court's judgment denying appellants' application for such a writ. 28 Cal.2d 460. They instituted the suit in the District Court of Appeal, Second Appellate District, Division Three, of California. Its object was to test the jurisdiction of the respondent Municipal Court of Los Angeles to proceed with a pending criminal prosecution against Murdock, who is an officer of the Rescue Army. In that court he had been charged with violating three provisions of the city ordinances, had been twice convicted, and twice the convictions had been reversed by the Superior Court of Los Angeles County.
While the case was pending in the Municipal Court after the second reversal, appellants filed their petition in this cause in the District Court of Appeal. Alleging that the Municipal Court was threatening to proceed with a third trial on the same charges, they set forth grounds held sufficient under the state procedure to present for adjudication the question of the Municipal Court's jurisdiction. 28 Cal.2d at 462-467.
The District Court of Appeal denied the writ. Thereupon the state Supreme Court transferred the cause to its own docket and issued an alternative writ of prohibition
Apparently Murdock was charged in the Municipal Court with violating three sections of the Municipal Code. These were §§ 44.09 (a), 44.09 (b), and 44.12 of Article 4, Chapter IV.
The second count charged violation of § 44.12 by soliciting without exhibiting or reading to the persons solicited an information card issued by the Los Angeles Board of Social Service Commissioners. Section 44.12 is more general than § 44.09 as to place and manner of solicitation. It is in the following words:
Obviously neither § 44.09 (b) nor § 44.12 is self-contained. Each incorporates by reference other sections of the code. Thus, it is necessary to take into account,
The issue of the Municipal Court's jurisdiction therefore, insofar as it concerns us, turns upon the validity of §§ 44.09 (a), 44.09 (b) and 44.12, together with the other provisions necessarily incorporated in them by reference; and, upon this appeal, their validity not only is relative solely to the effect of the federal constitutional prohibitions, but must be determined in light of the California Supreme Court's interpretation, including the extent to which other provisions have been incorporated. Moreover the jurisdictional question arises substantially as upon demurrer to the charges, since trial has not been had and the issue concerns only the Municipal Court's power to proceed with the criminal cause. Hence only the validity of the provisions on their face, not as applied to proven circumstances, is called in question.
The Gospel Army case, on the other hand, was an injunction suit, in which attack was projected on a broad front against the ordinances and the scheme of regulation they embody as a whole. For some reason § 44.09 (a) was not attacked in that suit. But § 44.09 (b) was involved
It is this setting of dovetailed legislative enactments and judicial decisions which creates the primary problem for our disposition. Those interrelations, of the cases and of the ordinances they involve, will be better understood in the setting of a summary of the general scheme.
The Municipal Code regulates both charitable and other solicitations, as well as pawnbrokers, secondhand dealers, junk dealers, etc. The regulations affecting those dealers lie outside Article 4 and became pertinent in the Gospel Army case because of that organization's activities in collecting, repairing, selling and giving away used articles.
Article 4, however, comprehends numerous interrelated sections and subdivisions. They provide a broad and general, though also highly detailed and integrated, plan for regulating solicitations in Los Angeles. The sections here in question are integral parts of that plan.
It is designed primarily, though not exclusively, to secure a maximum of information and publicity for the public. It seeks to make available to all persons solicited detailed information concerning the persons soliciting, the causes or organizations on behalf of which they act, and the uses to which the donations will be put. The plan also undertakes, in other ways, to assure responsibility, both moral and financial, on the part of soliciting individuals and agencies; and to see to it that the funds collected are applied to their appropriate purposes.
Machinery for executing the scheme is created through the establishment of a Department of Social Service and a Board of Social Service Commissioners, each with specified administrative powers.
More narrowly, insofar as the plan is relevant here, any person or association desiring to solicit contributions for a charitable purpose
The notice must be filed on a form furnished by the department and must contain the "complete information" specified in the margin.
The foregoing regulations apply, on the face of the ordinance, to charitable solicitations as requirements in the nature of conditions precedent, compliance with which is necessary before solicitation may be lawfully made. There are also other requirements which become applicable during and after the act of solicitation. One is that of § 44.15, which commands persons soliciting for charity to tender to each contributor a written receipt containing specified detailed information.
Article 4, moreover, classifies persons soliciting into three groups, two of which are primary, namely, "promoters" and "solicitors." "Solicitors," as will appear, are subdivided into two classes. The regulations bearing upon promoters are more onerous than those touching solicitors and are contained in § 44.19, which itself includes numerous subdivisions.
The exact definitive distinction between solicitors and promoters, who may be either institutions or individuals, is not clear from the definitions given in the ordinance,
Section 44.19 also regulates the relations between promoters and paid solicitors associated with them. A promoter
Section 44.19 thus apparently is effective to create two classes of solicitors, namely, registered and unregistered, as well as the distinction between promoters and solicitors; and establishes special and more burdensome conditions for lawful solicitation by registered solicitors, as well as by promoters, than are created for solicitors not required to be registered.
Finally, without detailed elaboration, numerous regulations in addition to or interwoven with those relating to solicitors of both types and to promoters govern the organizations or charities on whose behalf the solicitations are made.
The foregoing summary is perhaps more than sufficient to show the comprehensive nature of the plan and the intricately interlacing relationships of the numerous provisions of Article 4 making up the general scheme in which §§ 44.09 (a), (b) and 44.12 find their context and setting. Some no doubt could be applied independently,
Thus, with respect to the sections involved here, § 44.12 requires exhibition of the information card provided for in § 44.03. This in turn forces reference to § 44.05, which specifies the conditions for securing the card. And fulfillment of those conditions may compel resort to still other provisions. The same process must be gone through with respect to § 44.09 (b). For while that section differs verbally from § 44.12 in that it specifically requires only the filing of the notice of intention, not issuance or exhibition of the information card not only is the procedure for filing the notice highly detailed and largely set forth in other sections. It is also highly doubtful, in view of the California Supreme Court's decision, whether persons so complying and filing the notice would be authorized by that act alone to proceed with lawful solicitation under
It is necessary, in order to complete the environment of the problem presented by the appeal, to set forth somewhat more fully the manner in which the California Supreme Court dealt with §§ 44.09 (a), 44.09 (b) and 44.12, and related provisions. This, however, may best be deferred at this point, in order to state the legal principles which we think are controlling of our disposition.
The Gospel Army case we have dismissed for the technical, nevertheless important, reason that under California law the state Supreme Court's reversal, without more, contemplates further proceedings in the trial court. Consequently that judgment is not final for the purposes of our jurisdiction on appeal, within the meaning of § 237 (a) of the Judicial Code, 28 U.S.C. § 344 (a). 331 U.S. 543.
On the other hand, this appeal is not subject to that particular infirmity. The effect of the California Supreme Court's judgment, of course, will be to permit further proceedings by the Municipal Court. But under the rule of Bandini Co. v. Superior Court, 284 U.S. 8, this prohibition proceeding would be an independent suit, in relation to that criminal prosecution. "and the judgment finally disposing of it," as did the state Supreme Court's judgment, "is a final judgment within the meaning of § 237 (a) of the Judicial Code." 284 U.S. at 14.
The Bandini ruling is well settled.
Although the jurisdictional inquiry, in the state courts and here, was conducted in the separate proceeding on habeas corpus, unlike the Bandini case it related to a criminal cause, as does this case. And for the purposes of our jurisdiction under § 237 (a) of the Judicial Code, a distinction would seem to be wholly verbal between such an inquiry and its disposition made under the state procedure of habeas corpus and a similar one made in a state proceeding for a writ of prohibition.
While therefore we are unable to conclude that there is no jurisdiction in this cause, nevertheless compelling reasons exist for not exercising it.
From Hayburn's Case, 2 Dall. 409, to Alma Motor Co. v. Timken-Detroit Axle Co. and the Hatch Act case decided this term,
The policy, however, has not been limited to jurisdictional determinations. For, in addition, "the Court [has] developed, for its own governance in the cases confessedly
Some, if not indeed all, of these rules have found "most varied applications."
Indeed in origin and in practical effects, though not in technical function, it is a corollary offshoot of the case and controversy rule. And often the line between applying
The policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.
All these considerations and perhaps others, transcending specific procedures, have united to form and sustain the policy. Its execution has involved a continuous choice between the obvious advantages it produces for the functioning of government in all its coordinate parts and the very real disadvantages, for the assurance of rights, which
As with the case and controversy limitation, however, the choice has been made long since. Time and experience have given it sanction. They also have verified for both that the choice was wisely made. Any other indeed might have put an end to or seriously impaired the distinctively American institution of judicial review.
Most recently both phases of its operation have been exemplified in declaratory judgment proceedings.
One aspect of the policy's application, it has been noted, has been by virtue of the presence of other grounds for decision. But when such alternatives are absent, as in this case, application must rest upon considerations relative to the manner in which the constitutional issue itself is shaped and presented.
These cannot be reduced to any precise formula or complete catalogue. But in general, as we have said, they are of the same nature as those which make the case and controversy limitation applicable, differing only in degree. To the more usual considerations of timeliness and maturity, of concreteness, definiteness, certainty, and of adversity of interests affected, are to be added in cases coming from state courts involving state legislation those arising
Accordingly the policy's applicability can be determined only by an exercise of judgment relative to the particular presentation, though relative also to the policy generally and to the degree in which the specific factors rendering it applicable are exemplified in the particular case. It is largely a question of enough or not enough, the sort of thing precisionists abhor but constitutional adjudication nevertheless constantly requires. And it is this kind of question that the declaratory judgments procedure has facilitated in presentation, a consequence which dictates the greatest care in seeing that it be not utilized so as to become a means for nullifying the policy.
Much the same thing may be said for the state procedure in prohibition as it has been followed in this case. Indeed, in all but name the two procedures are substantially identical, for the purposes of our jurisdiction and function in review. Here relief is neither sought nor needed beyond adjudication of the jurisdictional issue. The suit seeks only, in substance, a judicial declaration that jurisdiction does not exist in the Municipal Court. But for a variety of reasons the shape in which the underlying constitutional issues have reached this Court presents, we think, insuperable obstacles to any exercise of jurisdiction to determine them.
Those reasons comprise not only obstacles of prematurity and comparative abstractness arising from the nature of the proceeding in prohibition and the manner in which the parties have utilized it for presenting the constitutional
In the first place, the constitutional issues come to us in highly abstract form. Although raised technically in the separate proceeding in prohibition, they arise substantially as upon demurrer to the charges against Murdock in the criminal proceeding. The record presents only bare allegations that he was charged criminally with violating §§ 44.09 (a), 44.09 (b) and 44.12, and that those sections are unconstitutional, on various assignments, as applied to his alleged solicitations. We are therefore without benefit of the precision which would be afforded by proof of conduct made upon trial. Moreover, we do not have the benefit on this record of even the literal text of the charges.
The California Supreme Court's decision purported to deal with both. But the opinion did not discuss the anomaly of including two distinct charges in a single count. Nor did it decide whether that count was intended to charge two such offenses independently, one under each subdivision, or only commission of those offenses alternatively, that is, either an offense under § 44.09 (a) or one under § 44.09 (b) in order, possibly, to anticipate contingencies of proof.
We might assume either one construction or the other, of course, and make our disposition accordingly. Perhaps the more tenable assumption would be that Murdock was charged conjunctively under both subdivisions, rather than that he was confronted with an alternative allegation. But the doubt raised concerning this, by conjunction of the charges in a single count, is substantial; the matter is, for present purposes, entirely one of state procedure and state law; and therefore is one for the state court of last resort to resolve. In these circumstances we are unwilling to undertake clarifying the ambiguity. To do so would be directly contrary to the policy of avoiding constitutional decisions until the issues are presented with clarity, precision and certainty.
The two subdivisions, while complementary in regulating solicitation by receptacles, are entirely distinct not only in the places where the regulations apply, but also in the conditions prescribed to be fulfilled before lawful
Other reasons relating particularly to § 44.09 (b) sustain this conclusion. In the first place, the California court's opinions give us no guide concerning the effect of that section's concluding omnibus clause, requiring compliance "in all other respects . . . with the provisions of this Article." Whether or not that court, treating the section independently as we must do,
Whether the charge under § 44.09 (b) comprehends failure to comply with all of the conditions of Article 4 or only some of them, and if the latter which ones, depends on whether the omnibus clause is to be literally applied, disregarded entirely,
Somewhat less obviously, similar difficulties are presented for dealing with the more specific requirement of § 44.09 (b) for filing the notice of intention and the related one of § 44.12 for procuring and exhibiting the information card.
Apart, however, from the difficulties created by the necessity of adding construction of the California court's opinions to construction of so many possibly applicable provisions of the ordinance, other problems have arisen from its disposition. In particular, its opinions do not enlighten us concerning the character and effects of the licensing requirements specified in §§ 44.05 and 44.03. With reference to them it said in its Gospel Army opinion:
So construing the licensing provisions and asserting that they are "designed primarily to secure information that will assist the public in judging the nature and worthiness of the cause . .. and to insure the presentation of such information to prospective donors," the California court concluded: "We find nothing unduly burdensome or unreasonable
Nevertheless, the construction given is, to say the least, ambiguous. For, despite the language indicating that the cards are to be issued "automatically upon the filing of the required information and the payment of the four cents for each card," the opinion expressly asserted that the department "may investigate the statements in the notice of intention." 27 Cal.2d at 239. And at another point it said: "The board may not disallow a proposed solicitation but it may investigate the statements in the notice of intention and the methods of making or conducting the solicitation; it may inspect the records of the person in charge of the solicitation and the association for whom it is made, and it may give such publicity to its findings as it deems best to reach the general public and persons interested."
These qualifications make it highly questionable that the court, by using "automatically" in the quoted context, meant to rule that on the mere filing of the required information, without more, solicitation would become lawful under § 44.09 (b) or that the information cards would issue so as to make solicitation legal under § 44.12. Rather, the intended holding would seem to have been that, upon full compliance with the numerous conditions specified for issuance of the card, the board would be without authority "either whimsically or arbitrarily" to withhold it from the applicant; but his failure in any substantial respect to meet those conditions, including perhaps waiting for the ten-day period and the outcome
That this probably was the court's intended construction appears not only from its apparent unwillingness to dispense with the necessity for meeting any of the conditions specified in the ordinance, but also from the manner in which it disposed of the provisions relating to promoters and to solicitors required to be registered under § 44.19. In this connection it said, also in the Gospel Army opinion:
There is, of course, a very substantial difference between the two possible views of the court's construction of the ordinances, for constitutional as well as other purposes. For in the one conception the provisions would be more
But we express no opinion concerning their validity in either conception. For we do not undertake to resolve
We are not unmindful that our ruling will subject the petitioner Murdock to the burden of undergoing a third trial or that this burden is substantial.
Our decision of course should be without prejudice to any rights which may arise upon final determination of the Municipal Court proceeding, relative to review in this Court of that determination. With that reservation we think the only course consistent, upon this record, at once with preservation of appellants' rights and with adherence
Accordingly, the appeal is dismissed, without prejudice to the determination in the future of any issues arising under the Federal Constitution from further proceedings in the Municipal Court.
MR. JUSTICE BLACK concurs in the result.
MR. JUSTICE MURPHY, with whom MR. JUSTICE DOUGLAS concurs, dissenting.
It is difficult for me to believe that the opinion of the Supreme Court of California is so ambiguous that the precise constitutional issues in this case have become too blurred for our powers of discernment.
The courts below and the parties involved have all acted on the assumption that the appellant Murdock was charged with having violated §§ 44.09 (a) and 44.12 of the Los Angeles Municipal Code. Now it is true that various other parts of the Code are interconnected with those sections and serve to complicate the picture somewhat. But the constitutional issues thereby raised seem clear to me. Simply stated, they are: (1) Does it violate the constitutional guarantee of freedom of religion to prohibit solicitors of religious charities from using boxes or receptacles in public places except by written permission of city officials? (2) Is that guarantee infringed by a requirement that such solictors display an information card issued by city officials?
Those issues were properly raised below and the courts necessarily passed upon them. The time is thus ripe for this Court to supply the definitive judicial answers. Its failure to do so in this case forces me to register this dissent.
The brief further states: "The portion of the Los Angeles Municipal Code involved in this proceeding is Article 4 (Charities and Relief) in Chapter IV (Public Welfare) and consists of nineteen sections numbered 44.01 to 44.19, inclusive. However, not all or any considerable number of such sections are actually involved herein, although a complete treatment of the sections primarily involved may require some mention . . . of most if not all of the other sections." Appellants' view, however, is that substantially all of the provisions of §§ 44.01 to 44.19 are incorporated by reference into §§ 44.09 and 44.12 for purposes of determining their constitutional validity.
"(b) No person shall solicit any charitable contribution, or any contribution for any real or purported charitable purpose, by means of any box or receptacle in any place immediately abutting upon any public sidewalk or way, or in any place of business open to the public, or in any room, hallway, corridor, lobby or entranceway, or other place open to or accessible to the public, or in any place of public resort, without first filing with the Department a `notice of intention' as required by Sec. 44.05, and every person so soliciting must in all other respects comply with the provisions of this Article."
"(b) A specific statement, supported by reasons and, if available, figures, showing the need for the contribution proposed to be solicited;
"(c) The character of such solicitation and how it will be made or conducted;
"(d) The expenses of the solicitation, including salaries and other items, if any, regardless of from what funds such expenses are payable;
"(e) What portion of the contributions collected as a result of the solicitation will remain available for application to the specific purposes declared in the Notice of Intention as the object of the solicitation;
"(f) A specific statement of all contributions collected or received by such person or association within the calendar year immediately preceding the filing of such Notice of Intention. The expenditures or use made of such contributions, together with the names and addresses of all persons or associations receiving salaries, wages, compensation, commissions or emoluments from such contributions, and the respective amounts thereof;
"(g) The names and addresses of the officers and directors of any such association for which the solicitation is proposed to be made;
"(h) A copy of the resolution, if any, of any such association authorizing such solicitation, certified to as a true and correct copy of the original of such resolution by the officer of such association having charge of the records thereof;
"(i) A statement that the signers of such Notice have read and are familiar with the provisions of this Article and will require all solicitors engaged in such solicitation to read and be familiar with all sections of this Article prior to making any such solicitation." § 44.05.
"(a) To investigate the allegations of Notice of Intention, or any statement or reports;
"(b) To have access to and inspect and make copies of all books, records and papers of such person, by or on whose behalf any solicitation is made;
"(c) To investigate at any time the methods of making or conducting any such solicitation;
"(d) To issue to all solicitors Information Cards which cards shall show" the matters set forth below in note 14.
"(2) The Board may, pursuant to Ordinance No. 34982, omit above provision and state that they endorse such charitable association;
"(3) The pertinent facts set forth in Notice of Intention required under Section 44.05 of this Article; [See note 12 supra.]
"(4) Any additional information obtained as shall in the opinion of the Board be of assistance to the public to determine the nature and worthiness of the purpose for which the solicitation is made."
"(a) To publish results of any investigation provided for or authorized in Section 44.03 subdivisions (a), (b) and (c) of this Article;
"(b) To give such publicity to any such results by such means as may be deemed best to reach the general public and persons interested;
"(c) To waive the whole or part of any provisions of Sections 44.03, 44.05, 44.06, 44.10, 44.11, 44.12, 44.13, 44.15, and 44.02 excepting this subsection, of this Article for the purpose of meeting any extraordinary emergency or calamity;
"(d) To request return of Information Cards to the Department upon completion of solicitation for which they are issued or at the expiration of the period for which they are valid;"
[Subsection (e) authorizes the board to recall and amend or correct the information cards on receiving additional information which, in its opinion, renders inaccurate any statement contained in it.]
"(f) To waive all conditions of this Article upon application of person filing Notice of Intention, in respect to Information Cards and filing copies of written authorization when a campaign or drive for raising funds for any charitable purpose is given general publicity through the press or otherwise, and when more than twenty-five (25) persons serve as solicitors without compensation, if it shall be proved to the satisfaction of the Board that the publicity concerning the solicitation fully informs the general public and the persons to be solicited as to the facts required to be set forth on the Information Card."
Section 44.01, entitled "Definitions," contains no definition of "solicitor," but defines "solicitation" broadly, as we have indicated in note 11 supra. The meaning of "solicitor" apparently is left therefore to be gathered definitively from the definition of "solicitation" and the use of "solicit" or "solicitor" in the special context of other sections as they become pertinent.
It should be noted that the definition of "promoter" in § 44.01, by including the word "solicits," italicized above, would seem literally broad enough to include any paid solicitor of contributions "for or on behalf of any other person" or charitable organization, and thus to include all solicitors except wholly voluntary ones. This seems to have been Justice Carter's view as expressed in his dissent in the Gospel Army case, 27 Cal.2d 232, 266. However, other sections indicate that solicitors may be paid as well as voluntary without becoming promoters. See § 44.19 (9). And see note 20. Murdock apparently receives compensation for his services as an officer of the Rescue Army.
It becomes unnecessary, however, to consider the validity of possible independent application of § 44.09 (a), for reasons to be stated. See text infra Part IV, following note 43.
Indeed the discretionary element characteristic of declaratory jurisdiction, and imported perhaps from equity jurisdiction and practice without the remedial phase, offers a convenient instrument for making the policy effective, quite to the contrary effect of the conception discussed in note 40 above. But that element, for application of the policy, is only one of convenience, not one of necessity. No more is application dependent upon it, essentially, than upon the similar element in other types of suit, as for example in suits for injunctive relief. Cf. Spector Motor Service v. McLaughlin, 323 U.S. 101.
The dictum referred to is the statement: "Without doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent." Cantwell v. Connecticut, 310 U.S. 296, 306.